Petition for Writ of Certiorari — Pan-American Life Insurance v. Raij
Supreme Court brief1964
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' Frank Ursicu,
5
, | “Ottice-Supreme Cowt, US.
i aie 27. U. Ee FILED
aa IN
JUL 6 1964
_Suprae Cour of the United a bis a
4
feo. October Term, 1964
No. 2 1 q
| Petitioner, .
VS. .
MANvEL G.¢Da Rosa, ANTONIO ° “GARCIA Da’ Rosa,
Maria A. Rosa, VICTORINO Garcia Da Rosa AND
Mary Rosa. SANTOos, .
_ Respondents.
\
“Petition. for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
Ben Marco.is and
Jonn_T. McTERNAN,
3175 West Sixth Street,
Los Angeles 5,@alifornia, -
Attorneys for Petitioner.
Parker & Son, inc. Law Printers, Los Angeles. Phone MA. 6-9171.
SUBJECT INDEX.
>’ Opinion below ................ ie sdanivciniisectaeisaliaseiicdadanias
Jurisdiction ..............--+-. -sspibeinivnensl li onisideininphontiaeadageistanta
‘Questions presented .........:sescsscs-ssssccsssssesersssseeceseenseess
Statutes involved .............-. eaetnes | enema ren
Reasons for granting the writ .................. ileal
™ 7 1 |
‘The fact that a defendant in a case where the
doctrine of res ipsa loquitur applies, offers di-
rect evidence of the cause of the accident, does
not render the doctrine inapplicable nor does ‘it
justify a refusal to instruct on the subject; the
“doubt expressed below on. this matter should be
post Seniisedesessicbenn cama ibid adesdedhipinisiatasiochlalaite
iF
—— the court below erred_in bolding that the- jury
might disregard the res ipsa loquitur inference
whether or not the defendant had offered evi-
dence to meet or balance it; while the res ipsa
doctrine does not shift the burden of proof, it
gives rise to.an interenee of negligence which
should prevail unless the “defendant presents ©
- evidence to meet or balance OF scircnrssonconpsncia PONE
re ___yy-— _
Where the doctrine of res ipsa applies it is error
to give an instruction stating the general prin-
-ciple that no inference of negligence can be.
| drawn from the mere tact that an accident
———— STEEN vs jucolaatalnccaxsi en Rinaihdeteuiees rks Ie
RE EELS Ne LESS OTS SN OE Pent ee
oon meee x Cet — ne Fee SE eet baes Se tS Se
° bs Gs
. — , 8
il.
Index to Appendices’ “Page
Appendix A: Opinion ‘of the United States Court -
' of Appeals for the Ninth SPU cicemcninestarenieatecees ' §
Appendix B. Judgment ................. RT RNS RN OC 10
Appendix C. Order denying petition for rehearing... 11
Lee
Appendix D. United States Code, Title 46, Sec.
2 EOE ETE aE a Se a 12 :
J
?
2
a D
"sien ok
| Bs
' TABLE OF AUTHORITIES CITED
Cases , - Page
Baltimore & O. R. Co. v. O'Neill, 211 F. 2d 190 ....9, 10
Bedal ¥. Hallack & Howard Lumber Co., 226 F.2d «
peli: ACIS et NNR NS Mao (9 WD
—“Berpley @.. Manns,99 Nz W. 24 849 ccssssreueueeen 21
’ Burr v. Sherwin Williams Co... 42° Cal. 2d 682, 268
TD cts ~foiecioiae a ae 20
‘Byrne v. Boadle, 159 Eng. Rep. 299 eee ee ouaae 8,14
Carpenter v. Baltimore & O. R. Co., 109 F. 2d 375 .. 22
Chesapeake &..O-R- Co. v. Thompson Mig. Co.,
270 U. S. 416 saskteleeteicies bom seis neasiansapoedenemeabiaeciel 8, 19
Christie v. Griggs, 170 _ Rep. 1088, 2 Camp. |
a cic ua dalacs cacgaasicansielaea aaunmeneneniatl ideale 8,13, 14
Cortes v. Baltimore Insular Line, 287 U: S. 367 .... 23 - >
Cosmopolitan Shipping ‘Company v. McAllister, 337 é
U.S. FOR eee B
Cratty v. Samuel Acéto:& Co., 151 Me. 126, 1é"
A. 2d 623 sities ahisksiaboecvbaondoniteacanclenieigiinatine aosieal fe 2. 21
Downs v. Longfellow Corp. 35} P. 2d 999 6f....::. 21
Fassbinder v. Pennsylvania R. R. Co., 322, Fe 24 859 22 .-
Gleeson v. Virginia Midland Ry. Co., 140 U. Ss.
435 oeceeeecleceeeetenegggecebeseeetieesneeaeennensensecneensensnes 8, 14, 18
Great Western Ry. a Canada Ji Braid, 15° Eng.
_ Rep, 640 CONE Scicsinitcilacmmecarmcmmtonss 8,9, 12, 14
Greyhound Corp. v. Brown, 209 Ala. 520, 113 So.
2d 916 ...... haicedcamceaene pppoe cernnecccognennecsnseeccnnsseeceneeets . 20
Inland and Seaboard Coasting Co. v. Tolson, 139 .
Me a eee MES ORLES,: 8, 9, 11, 15, 17, 18
Izzi. v. Philadelphia Transportation Co., 412 Pa.
SOD, TRS A, Be FOG oan csmcinssececssicinsiessittontatnseeetntonnnn 21
Viv. , |
ate Page
Jacobs, v. Beck, 141 So. OE oi oe
Jamison v. Endarnacion, 281 U.S. 635. cesses 23
Jesionowski:v. Boston & Maine RR., 329 U.S. 452 *
meinen istimainiaaimnantivieminltinnmmenndfulty
" _ Johnson v. Monongahela Power Company, Pe ae
og Mae sony 123 Sl EL 2d 81 Sica cssnsnecsenseiennececeneneenncs a
ae teen v. United States, 333 U. S. 46 Lasesssncad, 19
- Kearney v.. The London, Brighton & South Coast
/ Ry. Co, 5 QB 411 (1870), aff'd 6 QB 759
CTF) assess anesesegsneninanenenaceesiintnaniennsnansananitanersniaenitai 8, 14
Lund. v. Phillips Petroleum Company, 10 Utah 2d
276, 351 ¥. UE SUE in ieaiskcecbe non ates ipcbieaunivbsticncoinbits 21
McAllister v. Magnolia Petroleum Co., 357 U. Se
+P GE Wideinsiaintainenecimcinateteeaenaiiainesanetinig hiesinnminatamainingn 6
Miller v. Cincinnati, etc. R. Co.. 317 F. 2d 693°. 9, ir’.
Moon v. Johnson, ‘47 Tenn. App. 208, 337 S. W. +
SEE ED ackecicsaadingie sci anni uiatoaRacmaninaetnn _
Moore v. R. Fox & Sons [1956], 1 All E.R. 182. 8, 15
- Motte v: First Nat'l Stores, 76 R. 4. a 70 A. 2d eee
UE * Sesicgansinieagnt nea bteasieniiaiemed ain noses patton MO
Munzert v. ‘American Stores Co, 232 Md. 97, 192
Fis Be OT Cai scienibinaenieciiiptiainnisaiapnaidadbiamiumilesess a
New Jersey RR & Teenkn. Co. v. Pollard, 22 Wall.
eky Be Ge I DET setncieericenicnenenene 8, 15, 18 .
O'Neill v. B. & O. R. Co., 348 U. S. 956 aay 10, 11 x
‘Reece v. Webster, 221 Ark. 826, 256-5. W. 2d 345 .. 20
Robinson v. Nightingale, 188 Kan. 37, 362 P. 2d |
URE Ghupdiaiemnnsatieacadaiananad titania ca vipeabanmindadiie. 20
-San Juan Light. & T. Co: v. Requena, 224 U. S.
OF sec cesrasesssatishanaecaanenataaaanan 8, 9, 12, 16, 17, 18
.
one Reon meen
‘ f
v.
Page
Scott v. London & St. Katherine Docks Co., 159
. Eng. Rep. 665. (165) oredp.ceseeceeceerensencntaccesesensees 8, 15 .
Sisbeasl v.sGossnell, 234B./2d. BY. .ejeccsseeenee ey |
Southern /R. Co. -Carolina Division v. Bennett, 233
E: = £ peewee cabaaceieiabaeal 8, 14, 17, 18
| Stocking v. Johnson Flying Service, .... Mont. = ;
. ae ay i) nen eee ald enone 20 °
* Stokes v. Saltonstall, 13 -Pet. 181,-10 L. ed. 115-
aS FOE eR Sem ae In On 8, 9, 11, 12, 14, 15, 18
Sweeney v. Erving, 228‘U. S..233 .......... 8, 16, 18, 20
Texas & Pac. R. Co. v. Buckles, 232 F. 2d 257, ;
ile il: TOE TT BI asscknatersctrteinrd 12
The Arizona v. Anelich, 298 DB PD concerns
= v. F. E. Young & Co., 94 Ariz. 146, 382
_ P. ad 560 siiicsaelae nisms oaaeecntbteiesaenesiiesieweisaenexsimtacaieiaane . 20
- Walsh v. “Holst & Co., Ltd., 3 All ER. } Pees 8°15 |
“Weigand v. Pa. R. Co., 367 F. 2d 281 ........9, 12, 20 ©
Weiss v. Axler, 137 Colo. 544, 328 P. 2d een 20
; Weyerhauser ‘SS‘Co. v. Nacirema Co., 355 U. S.
563 s csiennmsisees lies onouacn ies stectnnshepe elebaikadinains oataseiniiye 6
, | Statutes : =
41 ‘tatutes ‘at Lavae. ee en ee we ey ie
United States Code, Title 28, Sec. 1254(1)_ suymeeas 2:
United States Code, Title 28, Secs 1291 sn
. United States Code, Title 28, Sec. 1333 2..2..........:0003- 2
United States Code, Title-46, Sec. 688 0.0... ..2,° 3
United States Constitution, Art. II], Co Peace i §
_"
6
.
Textbooks © © | Page
Frederick Pollock, The Law of Torts, a London Ed:
1887); pp. I iu sienna Dblenabennieccte 8, 15
_ Halsbury’s, Laws of England ( 3rd ed. ia, Vol.
28, p. 80 ia a 8, 14, 15
2 Southern California Law Review (1944), Pp. 187 21
Wigmore, Evidence (1940) ed.), Sec. 2502 ........ 16
Pa IN tc -
_ Supreme Court of the United States
——
_ October Term, 1964
SR itsihclenenis
FRANK URsICcH, (
band Petitioner,
| US. f :
MANvuEL G. Da Rosa, AnToNIo Garcia Da Rosa,
MariA A. Rosa, Victorino Garcia DA Rosa AND
Mary Rosa SANTos, cs
| = Respondents. ,
Petition for Writ of Certiérari to the United States
Court of Appeals for the Ninth Circuit.
Petitioner prays that a writ of certiorari issue to re- '
view the judgnient of the United States Court of Ap-
peals for the Ninth Circuit affirming a judgment of the ©.
United States District Court for the Southern District
. of California, Central Division, based upon a jury ver-
dict for the respondents (defendants below) and against
| petitioner (plaintiff below) in an action four personal in-
juries under the Jones Act. . ,
Opinion Bélow.
The opinion of. the United States Court. of Appeals
for the * Circuit is reported at 329 F: 2d 794
- (1964) and‘is set forth in Appendix A to this petition
No written opinion was rendered by the trial court.
- Jurisdiction.
The jurisdiction of: the district court is bined upon _
the Jones Act, 41 Stat. 1007, 46 'U. S. C,-688, ang upon
its admiralty and maritime urisdiction pursuant to Ar-
ticle TIT. Section 2, ef the} United. States Constitution
-and 28 U. S. C:1333.\. The Judgment of the United,
--States Court of leon for the Ninth Circuit was
made and entered on: February 26, 1964. (App. B, p.
ee, ‘Its jurisdictien is based upon 28 U. 5. <. wi.
& timely Petition for Rehearing was filed and denied
‘on April 7, 1964. (App. C, p. 11. ) The jurisdiction :
of this Court is invoked under 28 U. S. C. 1254(1).
Questions Presented.
1. Whether ina Jones Act case, where the doctrine
of res ipsa loquitur is applicable, that doctrine merely
permits the drawing of an.inference of negligence, or
whether it compels such"an inference subject to that
inference being overcome by cvmienne sufficient to meet
or balance it.
2. Whether. in an action for injuries received when
petitioner was ‘hit by a falling fish being hand¥®d by
and under the:-exclusive control of a fellow crew mem-
ber the court erred in instructing the jury.that no in-
ference of negligence could be drawn from the mere
- happening of the accident itself.
3. Where, in a Jones Act case, the evidence estab-
lishes without dispute that the respondent fishing vessel
owners had exclusive control of a fish an that said fish
was dropped by respondents and struck respondents’ em-
‘ployee, petitioner, does the fact that the respondents
introduce testimony of several possible causes of the fish
falling. at least one of which would, constitute negligence,
See
.render inapplicable the doctrine of res. ipsa loquitur?:
“4. Is the answer to the above question affected by
the fact that the explanation itself shows-that the man-
ner in which the work leading to the accident was done
was such that the fish dropping feasonably could have
been anticipated to result therefrom. particularly. where
accompanied by the admission that the work could have
been done in such a manner as to avoid this hazard?
Statutes Involved.
The action was brought under the Jones Act, 41 Stat.
1007, 46 U. S. C. 668 (App. D. p. 12.) The issues pres-
ented here do not relate to the language of oe statute ;
no’ other statute is here inv oly ed.
Statement of the Case. °
The following facts are undisputed and are substan-
tiated by the Witnesses, called by both parties:
The petitioner, while employed as a fisherthan aboard
respondgnts’ fishing vessel “Portuguesa”, was, engaged
together with a fellow fisherman, Druskovich, in dis-
charging fish from a tank of -said vessel. [R: 15, 103.
24-25, 76-77. 104.]' Large fish were removed from the
tank by a rope sling placed around their tails: smaller
“fish, in buckets. [R. 26, 28, 78.]
Petitioner was standing in the opening of the tank,
about two and ‘one-half. to/ three feet ‘squaregalongside
a bucket which he had filled, awaiting its removal by
‘means of a winch. [R. 33. 79-85, 109. The petitioner
was working where he had been assigned. was doing his -
1References to the ‘record {“R°] are to the pages of the Re-
porter's Franscript in the trial court. References to [“C"] are
to the pages of the Clerk's Transeript in the trial’ court.
.-
: | _4—
‘ °: job in.a proper manner, and did nothing which caused °
the accident.:[R. 114.]
A fellow crew member, Druskovich, was working on
the deck above and several feet from petitioner. [R.
-85.] While lifting a fish weighing between 130 and °* .
140 pounds by picking it up by its tail With one hand
and a hook inserted in an’ eye of the fish with the
‘other hand, Druskovich dropped ‘thes fish and it struck
petitioner, injuring him. [R. 32-33, 106, 108-109, 115.]
Petitioner offered no evidence as to what - caused
‘Druskovich to drop the fish.
The respondents offered testimony that the fish was _
handled in the customary manner and that even when
it was handled in such customary manner a fish gets
loose and drops a couple of times a day; the accident
could have occurred because the éye of the fish was soft
~ and the hook pulled out. or because the bones of the fish
broke, or because the hook broke. [R. 108, 119-121.]
There was no evidence as’ to which, if any, of the pos-
sibilities was the cause of the accident. [R. 121.]
"The testimony established without contradiction that
the proper way to place the hook in the eye of a tuna is
to place it under the bones in the eye, in order to prevent
it from slipping out. [R. 88-91, 137-138, 141.]_ There
_ was no evidence to the effect that Druskovich had done
this with the fish that fell. .
- Druskovich, respondents’ only witness, conceded. that
with big fish, for safety purposes, a sling is sometimes
used instead of a hook, [R. 119.] Moreover, Drusko-
vich admitted that he knew he was ‘handling the fish in
such a.manner that it might fall and that he did
nothing to prevent it. [R. 128.]
—— ‘i
Petitioner requested the trial court to give his pro-
posed instruction No..17 to the effect that from the.
happening of the accident, the jury -was. required to
infer some negligent conduct on the part of the re-
spondents, and that respondents had the burden of going
forward to meet or balance this inference by evidence
either. showing a cause for the accident’and respondents’
lack of negligence with respect thereto.or by evidence
showing such care on the part of the respondents as
to negate negligence by them even though. the cause
was unknown.’ | |
Respondents objected thereto on the ground that they
had offered an explanation’ of the accident and _ that.
. therefore, the res ipsa doctrine did not apply: The ob-
jection was sustained. [R. 161-163. 194.]
s
2The proposed instruction reads :
“From the happening of the accident involved in this case.
an inference arises that a proximate cause of the occurrence
was some negligent conduct on the part of the defendant.
That inference is a for. of evidence and unless there is con-
trary evidence sufficient to meet or balance it, the jury
should find in accordance with the inference. —
‘“When there is any evidence to the contrary, you must
weigh all of the evidence bearing upon the issue of defend-
ant’s negligence. If the evidence tending to prove that .the
accident was caused by a failure of the defendant to éxercise
the cate required of him has greater weight than‘the evidence
to the contrary, you will find in favor of the plaintiff on
that issue. : f
“In order to meet or balance the inference of negligénce,
the defendant must present évidence to show either (1) a
satisfactory explanation of the accident, that is, a definite
cause for the accident. in which there js no negligence on the
part of the defendant. or (2) such care on the defendant's
part as leads to the conclusion that the: accident did not hap-
‘pen because of want of care by him, but was due to some
other cause, although the exact cause may be unknown. Ti
such evidence has at least as much convineing force as the
inference and other evidence, if any, supporting the inference.
then you, will find against the plaintiff on that issue.” [C.. °
14-A.}- aa
.
my oe
7
‘The trial court, over petitioner's objections that the
instruction was not applicable where under the evidence
the res ipsa loquitur doctrine applies, gave respondents’
instruction No. 27-A:
“The mere fact that an accident happened, con-
- sidered alone, does not as a rule permit’ the jury
- to draw the inference that the accident was caused
by someone’s negligence.” [R. 156-158, 188, 194. ]
The jury returned a verdict for the respondent on
which the court entered judgment. [C. ‘15-16.] A
timely appeal was taken [C. 17] and on appeal the
judgment was affirmed. (Apps. A and B.)
The Court of Appeals, while it. expressed’ doubt
about the applicability of res ipsa in .the“light of the
‘direct evidence” offered by respondents as. to its cause,
did not reach that question. (App. A, pp. 5-6.)*
Rather, enunciating a proposition which had been argued’
neither in ‘the trial court nor on appeal, the Court of
Appeals held that the res ipsa instruction requested by
“petitioner incorrectly stated the law in that, as framed.
‘it did not make the inference of negligence merely per-— —
missive and thus subject to rejection, even in the ab- .
sence of evidence to meet or balance it. (App. A, pp.
6-7). « eo ae
The giving over objection of the instruction. that as
a rule an inference of negligence’may not be drawn
from the mere fact that-an accident happened. consid-
ered alone, was held not prejudicial even if res ipsa
~ 8This Court may exercise its discretion and pass upon the ques-
- tion not reached below. H’everhauser SS Co. v. Nacirema Co.,
355 U.S. 563, 569; McAllister v. Magnoiia Petroleum Co. 357
U.S. 2212 226. Petitioner urges that ‘the Court's discretion
should bé so exercised concurrently with consideration of the im-
portant issues which were passed upon,
nails
was. applicable because the instruction would have been
proper as an° introduction’ to a res ipsa. ir struction.
(App. A, pp. 7-8.) T his point was not urged by the re-
-spondents, their argument being limited to the proposi-
tion that the instruction was proper. because res ipsa
_was inapplicable.
Petitioner urged ‘on reer that the holdings on
issues which had not been argued to the Court should
be reconsidered with the benefit of briefs and argu-
ment from counsel. The Petition for Rehearing was
denied on April 7, 1964, and this application for cer-
tiorari follows.
Reasons for Granting the Writ.
.Certiorari is sought here on the grounds that the
‘court below has decided important questions of federal
law in a way in conflict with applicable decisions of
this Court. Although the holdings of this Court are
contrary to the holdings of the Court of Appeals here,
there are apparent inconsistencies in the language of
various decisions of this Caurt on the matters passed
upon below; these differences in language relate to im-
portant questions of federal law. lead.-to inconsistent
applications of the law and should be clarified. In
addition, the decision below is in conflict with decisions
of other courts of appeals on the same matters. These
important questions affect the administration of the
Jones Act which itself expresses, an important public
palicy.
There has been mugh confusion concerning the appli-
cation under federal law of the doctrine of “res: ipsa:
loguitur. The English cases beginning with those upon
which this Court based its early decisions and continu.
ew LE DR PI ce.
oe
ing to the present time* and leading cases decided ‘by
this Court? hold that the doctrine creates an infer-
ence or a presumption which, while’ it- does ‘not shift
the burden of proof, must be met or balanced by the
defendant’s proof that no negligence’ of his caused the |
accident.
The principal case relied on below, Sweeney v. Erv-
mg, 228 U. S. 233 (1913), holds only that res ipsa
does not shift the burden of proof but it goes on to
use language which is clearly susceptible of the con-”
struction that ‘the inference may be rejected even
though no‘evidence relating to the absence of negligence
is introduced: This /anguage has been picked up in
three other Supreme Court cases,® wherein the holdings
relate to other aspects of the doctrine.
The Jesiouowski and Johnson cases were relied on
' by the court below without any consideration either of
their-dicta aspects or of the definite holdings in other
Supreme Court cases supporting petitioner’s position,
‘Christie v. Griggs, 170 Eng. ‘Rep. 1088, 2 Camp. 79. Byrne v. |
Boadle, 139 Eng. Rep. 299. Halsbury’s, Laws of England (3rd
ed. 1959), Vol. 28, page 80. Kearney v. ant London, Brighton
é& South Coast Ry. Co., 5 Q.B. 411° (187Q). aff'd 6 Q.B. 759
(1871). Scott v. London & St. Katherine Socks Co., 159 Eng.
Rep. 665 (1865). Frederick Pollock, The Law of Torts ( t andop
Ed. 1887), pages 421-2. Moore v. R: Fox & Sons [1956], 1
All E.R. 182 (C. A. 1955). Walsh v. Holst & Co:. Ltd., 3
All ER. 33 (C. A. 1958). Great Western Ry. Co. of Canada
7. Braid, 15 Eng. Rep..640. (1863).
5Stokes v. Saltonstall, 13 Pet. 181, 10 I. ed. 115 (1839). New
Jersey RR & Transp. Co. v. Pollard, 22 Wall 341, 23 L. ed. 877
(1875.) Inland and Seabourd Coasting Co-v. Tolson, 139 U. S.
551 (1891). San Juan Light & T. Co. v. Requena, 224 U. S.
© 89. (1912). Gleeson v. Virginia Midland Ry. Co., 140 U. S. 435
(1891). Sonthern R. Co. “Carolina Division v. Bennett, 233 ~
LU. Ss. 80 (1914).
6Jesionowskt v. Boston & Maine RR. 329 U. S. 482 (1947).
Johnson @. bd nited States, 333 U. S.-46 (1948). Che sapeake cy
O.R. Co. v Thompson Mfg. Co. 270 U.S. 416 (1926).
a
with which the decision below is in conflict. - The deci-
sion of the Court of Appeals in this case .is also in’
-conilict with a decision of the Court of Appeals for the
Third Circuit. Weigand v. Pa. R. Co.,.367 F. 2d 281
(C. A. 3, 1959).
The court below also raised a doubt as to, sions)
it did not decide: whether res ipsa applies in a situation
in which the defendant presents direct evidence of the
cause of the accident. Decisions of this Court and of
the various courts of appeal including that of the
Ninth Circuit indicate that there is no basis for this
doubt.7. As a preliminary step’to considering the im-
portant question of the nature of the inference of negli-
gence in a res ipsa situation, this question. soph be
laid to rest.
The: Court of Appeals held that even if res ipsa
Joquitur was applicable it was not error to give an in-
struction stating the general rule that no inference of
negligence, can be drawn from the mere happening of
an accident. This’ holding is in conflict with decisions
from other circuits and presents an important question
which. this Court should resolve.
Because of these conflicts: and the: confusing state
of the law clarification by this Court is of great im-
portance to the large volume of Jones Act and other
cases involving federal law where the doctrine of res ipsa
loquitur may be applicable.
70'Neill v. B. & O. BR. Co., 348 U.S. 956 (1955), revers-
ing Baltimore & O. R. Co. v. O'Neil. .211 ¥. 2d 199 (1954).
Miller v. Cincinnati, ete. KR. Co. 317 1. 2d 693, 698 (C. A, 6,
1963). Pedal v. Hallack & Howard Lumber Co., 226 F. 2d
526. 538 (C. A. 9, 1955). Stohes v. Saltonstall, 13 Pet. 181, 10
L.. ed. 195 (1803). Inland & Seabcard Coasting Co. v. Tolson,
139 U.S. 551 (1891). Great Western R. Co. of Canada wv. Braid,
15 Eng. Rep. 640 (1863). San Juan Light & T. Co. v. Requena,
224 U. S. 89 (1912). Weigand v. Pa. R. Co., 267 ¥. 2d
281 (C. A. 3, 1959).-
, —10—
. I. :
The Fact That a Defendant in a Case Where the
Doctrine of Res Ipsa Loquitur Applies, Offers
. Direct Evidence of the Cause of the Accident,
Does Not Render the Doctrine Inapplicable nor
Does It Justify a. Refusal to Instruct on the Sub-
ject; the Doubt Expressed Below on This _.
ter Should Be Removed.
' Although the court below expressed “considerable
doubt” as to whether the instruction. on res ipsa should
have been given “because here direct evidence was not
; lacking” (App. A, pp. 5-6), the law is definite that the:
instant case was a proper one for the apglication of ‘thi?
doctrine, and the giving of an appropriate instruction
.on it to the jury. This Court in O'Neill v. B. & O.. R.
Co., 348 U.S. 956, by reversing the decision of the
Court of Appeals,” made it ciear that the introduction ~
of direct evidence concerning the cause of an accident
does not eliminate the res ipsa doctrine from a case
in which it is otherwise appropriate. The Third
Circuit had reversed a judgment for the plaintiff, who
had relied on the doctrine of res ipsa, on the grounds ©
that the defendant’ s uncontroverted: ev idence\show ed
“that the defendant had not been negligent and that the
‘inference of negligence was thereby. effectively dispelled
as a matter of law. Baltimore & O. R. Co. v. O'Neill,
supra, 211 F. 2d 190..
Judge McAllister. dissenting in that case, took .the
| position that defense testimony of fered te meet the int
SThe name of the case below was Paltimore & O. R. Ca. v.
O'Neill («C. As 3. 1954), 211 F. 2d 190.
. —ll—
ference of negligence is to’be weighed by the jury
against the inference, except in those cases where the
“entire evidence is such that the presumption cannot
stand-against it.” and where the evidence is “so .con-—
clusive that the minds of reasonable men could not dif-
fer ag to the conclusions to be drawn therefrom.” He
further’ observed that :. gts. e
“It is not enough that the ev idence of the defendant
would, if true. be sufficient to rebut the presump- |
tion, because it is for the jury to pass upon the
credibility of the witnesses and the truth of the
testimony.” [211 F. 2d at 197.]
In a per curiam order, this Court reversed the judg-
ment of the Third’ Circuit. and reinstated the judgment
“of the District Court. O'Neill @. B.& O. R. Co., supra,
348 U. S. 956. That-action has been interpreted by the
Courts of Appeals for both the Third Circuit and the
- Nénth Circuit as indicating approval by this Court of: -
Judge MeAllister’s dissent. Miller.v. Cincinnati, etc. R.
Co., 317 I. 2d 693, 698 (C. A. 3,-1963); Bedal z
Hallack & Howard Lumber Co., 226. F. 2d 526, 538 |
(CA. 9, 1955). . ,
The views expressed by Judge Me. Allister find ad-
ditional support in previous opinions Of this Court:
Stokes v. Saltonstall, 13 Pet. 181, 10 L: ed. 115 (1839) ;.
and Inland. & Seaboard Coasting Co. v. Tolson,, 139
U.S. 331 (1891). In both of these cases, defendants
offered evidence tending to show no neglige ‘nce on their
part, and. it. was-nevertheless held proper to have in-
‘structed the jury on principles of res ipsa. To the same
‘eo
—12—
_ . effect, see Great Western R. Co. of Canada v. Braid,
15 Eng. Rep. 640 (1863). at
Indeed, it has frequently. been held that the jury may
. properly. be instructed on res ipsa eyen where the plain-
“tiff Shimself offers direct evidence) tending to establish
-specific negligence on the part of the defendant. See,
e,g.; Stokes v. Saltonstall, supra, 13 Pet. 181, 10 L. ed.
/115; San Juan Light & T. Co.'v. Requena, 224 U..S. 89;
Weigand v. Pa. R. Co., 267 F. 2d 281 (C. A. 3, 1959);
Texas & Pac. R. Co. v. Buckles, 232 F. 2d 257 (cert.
den. 351 U. S. 984) (C. A. 5, 1956).
Moreover, in the instant case the “explanation” of
fered by respondents tended to confirm rather than to
negate their negligence. The evidence offered by re-
spondents indicated that the fish fell either because the
_ hook was‘not. properly inserted or because with the
method of hardling the fish when the accident occurred,
| as distinguishea from another method which was some-
times used, the occasional dropping of a fish was un-
avoidable. .( App. A, pp. 2-3.) Thus, according to re-
spondents’ explanation, the accident occurred either be-
cause of the failure to properly execute the method of
work or because of a deliberate choice of a. dangerous
-.method. This is hardly evidence which so conclusively
negates ‘the res ipsa. inference of negligence, as to _
climinate it from the case. ~
\ *
<n
me es .
The Court Below Erred in Holding That the Jury
Might Disregard the Res Ipsa Loquitur Infer--
ence Whether or Not the Defendant Had Of-
-* fered Evidence to Meet or Balance It; While - |
: the Res Ipsa Doctrine Does Not Shift the Bur-
den of Proof, It Gives Rise to'an Inference of |
Negligence Which Should Prevail Unless the »
Defendant Presents Evidence to Meet or Bal-
ance It. : oe Re
In this case the facts of exclusive control of the fish
by the respondents and of its being dropped on petitioner
are not in dispute. The quéstion is whether the jury
should have been instructed that the doctrine of res ipsa
loquitur, applicable. to these facts, required a finding in
accordance with the inference of negligence unless there —
“was evidence negating the inference of negligence ‘suf-
ficient to meet or balance the inference.
The court below held that such an instruction was
improper and that the res ipsa doctrine requires merely
that when the doctrine applies, the. jury be free to ac-
cept or reject, the inference of negligence, regardless of
whether there is evidence to meet or balange it.” In
this, the holding below appears to‘rest upon a misreading
and misapplication of prior-decisions of this Court and
of the historic. development_of the res ipsa doctrine. _ |
As early as 1809 it was held in England that the doc-
trine of res ipsa loquitur, as applied to a passenger
injured when the axle af a stdge coach broke, not Only
afforded plaintiff a prima: facie case but rendered it
“ .encumbent on the defendant to make out. that the
damage in this-case arese from-what the law considers
a mere accident.” Christie. 7. Grigds, 170 Eng. Rep.
ae ae —14—.
1088, 2 Camp. 79. In a.case decided in: 1893 by. this
-Court the Christie case was cited’ as authority for the
- proposition that where injuries.were caused by a stage
coach overturning, the jury aas-ccrrectly instructed that
the facts threw “upon the defendant-the burden of prov-
ing that the accident was not occasioned by defendant's
fault.” Stokes v. Saltonstall, ‘13 Pet. 181, 10 L. -ed
115 (1839). To the same effect, Glecson v. V irginia
Midland.Ry. Co., 140 U..S. 435; Kearney v, The Lon-
don Brighton & South Coast Ry. Co., 5 Q. B. 411.
(1870), aff'd 6 Q. B. 759 (1871); Great Western Ry. |
Co. of Canada v. Braid, 15.Eng. Rep. 640 (1863).
In 1863, the: same principles were applied-in a. case
- which did not involve a common carfier-pas$enger re-
lationship, and it became the text book exe
‘the res ipsa doctrine.. Byrne v. Boadic, 159 Eng. Rep.
299. There a barrel of flour fell from a building and
struck the plaintiff who was walking along the side-
walk. The’ court held not. only. that an inference of ”
“ negligence arose from those facts, but that “if there
are any facts inconsistent with negligence it is for the
- defendant to prove them.” [159 Eng. Rep. at 301.]
See also. Halsbury's, Laws of England (3d ed. 1959)
~~ -
*Whether or not this language of the Court intended to dndicmne
that the burden of proof shifted is not entirely clear although the —
case was so construed in Sweeney. “However that may be, in a
‘later decision, of this Court it is made clear that. language of
similar import refers riot to a shifting ofthe burden but“to the
requirement that the defendant is required to offer an explana-
tion if the inference is to he at Southern Rk. Co.-Carolina
Division v. Bennett. infra, 233 C..S. 80, 85-86 (1913).
There can be no doubt that sr bi an injury is alleged to
have, arisen from the improper construction of a railway, the fact
of its having given way will amount to prima facie evidence of
Its mseitticien ‘y, and this evidence may become conclusive od
the absence of any od on the part of the Company to rebut it.
"(15 Eng. Rep. at 646
ar of -
te
| ‘aniline , | - ‘
Vol. 28, page 80; Frederick Pollock, The Law of Torts —
(London Ed., 1887), pages 421-422;" ott _v. Lon- -
don & St.sKatherine Docks Co., 159 bug. Rep. 665
(1865). greet! ares
' The law of England on this subject has not changed.
In Moore v. R. Fox & Sons'[1956], 1_All E.R. 182
-(C. A. 1955), the Court of. Appeals. reversed a trial
court which had ruled that-in a res ipsa case the de-
fendant was entitled to judgment if he showed various
possible causes of the accident involving no negligence
on his part.- The appeHate court held that in such a
case the defendant has the burden of producing evi-
‘dence to establish- (1) that the injury was due to a
cause not connoting its negligence or (2) that it used
all reasonable care in and about the management of the
.thing which caused or inflicted the injury. See also,
Walsh v. Holst & Co., Ltd., 3 AWE. .R.°33 (1958).
These principles | were applied in the United States
in a series of cases invol.:ing Common carrier- -passenger
relationships. Stokes v. Saltonstall, supra, 13 Pet. 181.
10 L. ed. 115 (1839): New Jersey R.R. & Transp. Ca.
«. Pollard, 22 Wall. 341, 22 L. ed. 877 (1875). How-
ever, the application of res ipsa was not limited to com-
mon carrier-passenger cases. “In Inland & Seaboard
Coasting Co. v. Tolson, supra, 139 U. S. 551 (1891),
the principle was held to have been correctly covered
by a jury. instruction in.a case in which a boat allegedly
hit a dock with great force and injured a person on-
: ' : : c
M“Where dainage is done- by the falling of objects into a
highway from a building, the modern mile is that the accident. in
‘the absence of explanation. is of itself evidence of negligence.
In other words. the burden of proof is on the occupier of the
building. If he cannot show that the aé-ent was. due to some .
canse consistent wath the due rep air ‘an! careful management: of
the structure, he is ligble.
. rt a .
the dock, .The instruction which was sustained*had\he |
effect of advising the jury that if the boat did in fakt -
strike. the dock with such force as to cause damage
which would not ordinarily occur, “this would be prima
facie evidence gf negligence . . . unless upon the
whole evidence in the case the prima facie evidence
was oaeagel In San Juan Light & T. Co. v. Requenay
224 U. S. 89, where plaiptift’s decedent was electro-
cuted oy ‘a surplus and: dangerous” electric current,
the jury was*properly instructed that “the presumption
is that the electric company was negligent: and it de- |
volves upon it to show that athe surplus and. dangerdus-
current that came over the wires did not occur from
any negligence on its part.”
The San Juan Light & T. Co. case was decided one”
year before Sweeney v. Erving, supra, 228 U%S. 233
(1913); yet Sweeney does not mention it, nor have the
‘res ipsa principles enumerated in the earlier “case.
grounded upon a long series of precedents, ever been
“overruled by this Cogrt. Sweeney is susceptible of the
construction that res ipsa creates noamore than an infer-
enceswhich the jury is free to reject even in thesabsence
of any explanatory evidence. However, the precise ques- .
tion there presented was whether res ipsa shifts the bur-
den of proof to the defendant. [228 U, S. at 238.] The
issue here is whether, without shifting the burden of
proof, res — requires the defendant to go forward and
12The reason for the rule has been stated by Wigmore :
the particular force and justice of the rule, regarded .
as a ire sumption throwing upon the party charged the duty -
of producing ev idence, consists in the circumstance that the
chief evidence of the*true cause, whether culpable or in-
necent, 1s practically accessible to him [the defendant] but.
inaccessible to the anjured person.” Wigmore, Evidencé,
1940 ed., Vol. 9, Sec. 2500.
ano Jaw
“meet or balance” the inference of negligence in order
to prevail. This issue was not before the Court in
Sweeney ;'* where it was before the Court in earlier
cases, it was held that the inference will prevail unless
it is met or balanced by. evidence tending to clear the»
defendant of negligence. /nland & Seaboard Coasting
Co. v. Tolson, supra, 139 U. S. 551; San Juan Lighi
& T. Co. v. Requena, supra, 224 U. S. 89.
That Sweeney did not intend to lay down a contrary
ruJe is evidenced by the fact that one year after that
decision the Court in Southern R. Co. Carolina Divi-
sion v. Bennett, 233 U. S* 80 (1913), restated the
principles declared in the San Juan Light & T. Co.
case. An instruction to the effect that injury from
defective instrumentalities which would ordinarily. be
safe if properly maitttained (comparable to injury from
a falling fish which would ordinarily: not fall if due
care were taken) is “prima facie evidence” of negli-
gence in an action under the Employers Liability Act,
embodied in the Jones. Act’ here involved, “and that
the master assumes the burden of showing that he ex-
ercised due care . , .”. [233 U. S. at 85-86.]"
The Court in Sweeney recognized this when it said: P
¥: Plaintiff's insistence ‘as not mérely that the evidence
of the occurrence of the injury under the circumstances was
evidential of negligence on defendant's part, sc as to make it
incumbent upon him to present his proofs; the contention was
that it made it necessary for him to prove by a preponder-
ance of the evidence that there was an absence of negligence
on his part.” [228 U.S. at 239. .
“The import of this danguRe was made clear by the Court:
° . Of cours® the burden of proving negligence in a
" strict sense ison the plaintit! throughout, as was recognized
and stated later in the charge. The phrase picked out /f6r
criticism did not controvert that) proposition, but merely
expressed in an untechnicai way thet, if the death was due
- to a detegtive instrumentality and no explanation was given.
the plaintift had sustamed the burden. . 2." [233 U.S.
at ‘&5-86. | :
—18— |
Moreover, Sweeney cites with approval /nland &
Seaboard Coasting Co. v. Tolson, supra, 139 U.S. 551,
a case’ not involving a carrier-passenger relationship”
’ which held that the res ipsa interence had to be met
for. the defendant to prevail. The Court also cited the
passenger cases of New Jersey R.R. & Nhe ae eon
Co. v. Pollard, supra, 22 Wall. 341, 22 L. ed. 877:
and Gleeson v. Virginia Midland Ry. €0., supra, 140
U. S. 435, iti which the Court held that in a res ipsa
case the inference of negligence would prevail if not
met by evidence dispelling it. These cases dre cited,
among others ior the proposition that Stokes v. Salton-
stall, supra, 13 Pet. 181, 10 L. ed. 115, did not hold’
that the res ipsa had the effect of shitting the burden
of proof. Stokes, like New Jersey R.R. & Transporta-
tiun (v., and like Gleeson, did. however, require the
defendant to meet the inference if liability were to be
avoided. | | ; |
Thus when Sweeney is read in the light of the cases
it cites and of Southern R. Co., decided the subsequent
year, and San Juan Light & T. Co., decided the prior
_year, the conclusion is’ inescapable that this Court by
weeney actually decided no more than that res ipsa
pe not shift the burgen of proof. Despite language
which may be subject to a contrary interpretation on
an issue not squarely presented to it, the decision should
not be cohstrued.as overruling the Court's prior de-
cisions and the deep-rooted principle that unless it is
balanced or met, res ipsa requires: a judgment for the
plaingiff.
This is of importance because in Szweceney+the Court distin-
guishes Stokes 7 Saltonstall. supra, 13 Pet. 181. on two grounds.
one.of which 1s that it was a passenger case involving the high-
est degree of care. That the rule of res ipsa loquitur extends
beyond, passenger cases is a matter hardly open to dispute today.
ookt a
—19— f
weency has been cited in but thrée Supreme Court
cases, Chesapeake & O. R. Co. v. Thompson Mfg. Co.,
270 U.S. 410 (1926): Jesionowski v. Boston & Matne
R.R. Co., 329 U. S. 452,°457; and Johnson v. United
States, 333 U. S. 46. The latter two plus Sweeney
are the entire authority ‘cited in support of its holding
of this point by the court below. In the Chesapeake &
O. R. Co. case the Court merely held that-dn inference .
of negligence was not conclusive where there was evi-
dence “which persuasively tended to exclude the pos-
sibility of negligence.” [270 U. S. at 423.] Petitioner °
agrees-with this proposition as does the rejected instruc-
tion.
The treatment of the inference problem in both
~Jesionowski and Johnson, the cases cited by. the“court
below. is dicta for in both cases the issue related to
whether an alleged error which aided the plaintiff had |
been committed, and in both cases the plaintiff prevailed.
In Jesionowski this, Court overruled an appellate court's
reversal of a plaintiff's: jury verdict: the holding of the -
Circuit Court. which was held erroneous. was that res
ipsa did not apply because the plaintiff had partial con-
trol of the instrumentality causing the accident. In
Johnson, the Ninth Circuit reversed. a judgment for
plaintiff where the plaintiff was hit by a-falling block,
but the cause of the block falling was not shown; the
appellate court had held that the accident could haye hap-
pened without negligence and. therefore res ipsa did-not
_ apply: the Supreme Court reinstated the judgment for.
_ the plaintiff. In neither case was the issue presented
whether the inference of negligence could have been re-
jected by the jury without evidence supporting such re-
jection.
crete ince tear
= a
Thus the law as declared by this Court right up to
the present time can be summarized as follows. There
are a number of decisions, deeply: rooted in precedent,
supporting the proposition that the res ipsa inference
may not be rejected without countervailing proof; there
are no holdings to the contrary, albeit there is language
in several cases to the effect that the inference may be
rejected by a jury, even thoigh no evidence contrary
tkereto is given. ‘Petitioner submits that the law re- .
quires clarification so that language in cases where the
issue was not directly involved shall not be substituted
for the clear and soundly based holdings of this Court.
weeney has not always been construed in the manner
of the court below. In l‘eigand v. Pennsylvania R.R.
Co., supra, 267 F. 2d 281, an F. F. L. A..case, the
Court applied Sweeney as requiring the giving of an in-
struction that in a res ipsa case ‘*.. . it is incumbent upon
the defendant to come forward with evidence to explain
the cause of such collapse [1.¢., the cause of the accident ]
and that the defendant exercised due care on its part in
providing plaintiff with a safe place to work.” This
opinion is in conflict with that of the Court of Appeals
in this case and that conflict should be resolved."® ,
16Among the state decisions are some which hold that the res
ifsa loguitur doctrine creates a presumption’ which shifts the ~
burden of proof. Greyhound Corp. v. Brown, 269 Ala. 520,
113 So. 24 916 (1959); Wetss v. Aaxler, 137 Colo. 544, 328 P. 2d
88 (1958). Others treat the doctrine as a presumption which
shifts the burden of going forward. Robinson v. Nightingale,
188 Kan. 377, 362 P. 2d 432 (1961); Stocking v. Johnson Fly-
ing Service, Mont. . . 387 P. 2d 312 (1963): Motte v. First
Nat'l Stores, 76 R. 1. 349. 70 A. 2d 822 (1950). Still others
treat it as an inference which shifts the burden of going forward. |
Burr wv. Sherwin Williains (o.. 42 Cal. 20 682, 268 P.2d 1041;
Stebrand wv. Gessnell, 234. F.2d 81 (1956). Throop v. F. E.
Young & Co.. G4 Ariz. 146, 382 VP. 2d S60 (1963): Reece v.
H'ebster, 221 Ark. 826, 250 S.W.2d 345 (1953); Munsert v.
—j—-
Ill.
Where the Doctrine of Res Ipsa Applies It Is Error
to Give an Instruction Stating. the - General
Principle That No Inference of Negligence Can.
Be Drawn From the Mere Fact That an Ac-
cident Happened.
Citing no authority for its fichdiag, the court below"
ruled that the giving of the following jury instruction,
over petitioner’s. objection that? it should not be given
in a res ipsa case, was not error.
“The mere fact. that an accident happened, con-
sidéred alone, does not as a rule permit the jury to
draw the inference that the accident was caused
by someone’s negligence.”
The essential vice of this instruction Js that it rests
upon a premise which is at war with that underlying
the res ipsa doctrine. The law recognizes that under’
certain circumstances accidents ordinarily do not happen
in the absence of negligence. Further. given the de-
fendant’s control of the instrumentality of injury in such
cases, it regards the negligence as probably that of the |
-defendants. ‘Thus if such eases the happening of the
accident does indeed aida sal the inference -of negligent
American Steves Co., 232 Md. 97, 192 A2d 59 (1963): datoks
» Reck, (La.) 141 So.2d 920 (1962): Cratty * Samuel .Accto
G Co., 151 Me. 126, 116 A.2d 623 (1955): Pergley v. Manns,
~ (N. Dak.) 99 N.W.2d 849 (1959) 2 Downs v. Longfeilow Corp.
(Okla.) 351 P.2d Y99 (1969); [est wv. Philadelphia Trans porta-
tion Co., 412 Pa. 559, 195 A.2d, 784 (1963): Moon wv. _ Johnson.
- 47 Tenn. App. 208, 337 S.W.2d 404 (1959) 5 Lund wv. Phillips
Petroleum Company, 10° Utah 24 276, 231 12d 952 (1960):
_Johnson.v. Monongahela Power Compeny. ... We Va. ...,. 123
S.F.2d &1 (1961). Probably the most thoroagh treatment of
the res ipsa loguitauy doctrine vill be found in’ Shain, Mark.
Res Ipsa Loguitur: Presun i ptions and ° hurde n of Prooj ( Los
Angeles. Parket & Company. 19431. See also, a law review
afticle by the same author, “Res Epsa [oqaitur”, 17 So.Cal.L.Rev.
187 (1944).
conduct. The instruction given runs counter even to the
‘construction of the-res ipsa loquitur doctrine adopted.
by the court below which would render the inference
permissive only, for it leaves no room for any inference
at all from the happening of the accident. .
This holding ‘is in conflict with those of. other Courts, -
- Appeals. Carpenter v. Baltimore & O. R. jo (©, A.
6. 1940), 109 F. 2d 375; Fassbinder v. Pennsylvania
R.R. Co. (€. A. 3, 1963), 322 F. 2d 859. In Car-
penter, it was held that such an instruction was er-
roneous in a res ipsa case. There the instruction was
that “the defendant cannot be held liable in this case
merely because the lead weight or ball fell and by rea-
son thereof injured plaintiff.” The effect of the in-
struction given in the instant case was to. advise the
jury that the mere fact that the fish fell and injured
petitioner cannot constitute a basis for holding the re-
spondents liable. The two cases are ‘squarely in ¢con-
flict.
In Fassbinder, it was held that in a case where res
ipsa was applicable but no jury instruction on the sub-
ject was requested or given, the doctrine nevertheless ap-
plied and the jury could properly infer negligence from
the mere happening of the accident. Tmthe present case,
assuming arguendo that the prof fered res ipsa instruc-
tion was erroneous and therefore properly denied. the
holding of Fassbinder is that res ipsa was nexertheless |
in the case and the jury could properly base its* verdict
thereon. Here the jury was told that the gertgral rule
of law did not. permit such an inference. thus removing
res ipsa (even as’ construed by the court below) from
the case. Again there is a square conflict. |
The court below justifies the giving of the instruc-
tion that no inference of negligence could be drawn from
a:
the mere happening of the accident on the ground that
it would have been proper as an introduction to a res
ipsu instruction. If it had been so given, the jury would
have been informed that although generally no infer-
ence of negligence can be drawn from .the mere hap-
pening of the accident. inv this case it could be. The
vice of thie instriiction-is that..it. tells the jury of the
general rule, as though it were applicable t to this ¢ase:- ~
without even an intimation that it is not so applicable.
Conclusion.
The court below in a Jones Act case has construed the
‘doctrine of res ipsa loguitur so as to restrict its useful-
ness to seamen contrary to historically founded principles
of common law, as well as to its interpretation in both
this Court and many state courts. Yet it has repeatedly
been said that the Act should be given a liberal con-
struction in order to accomplish its beneficent purpose
of affording protection to seamen. Cosmopolitan Ship-
ping Company wv. Mé-fllister, 337 U. S. 783, 790:
(1949); Cortes 7. Baltimore Insular Line, 287 U.S
367, 375 (1932): Jamison 7. Encarnacion, 281 U. S
635, O40 (1930); The Arizona v. Anelich, 298 U. S.
110, 123 (1936). This Court should give considera-
tion to the question whether. in the light of more liberal
precedents including those of this Court. the restricted
construction of the res tpsa doctrine as applied to Jones
Act cases by the court below is warranted. Precedent
and the policy of the law in this area would seem to
call for a reversal in this case.
BEN Marcouis and
Joun T. McTERNAN,
By Ben Marcovts,
Alitorneys for Petitioner.
~@ _— aM veeee
APPENDIX A.
- Opinion of the United States Court of Appeals for
the Ninth Circuit. i
United States Court of Appeals for the Ninth Cir-
cuit. - 3 | 3
Frank Ursich, Appellant, vs. Manuel D. Da Rosa,.
et al., Appellee. No. 18,409.” i
[Feb. 26, 1964] .
Appeal from the United States District Court for the
Southern District of California, Central Divison. |
Before: Hamlin, Browning and Duniway, Circuit
Judges. | Per
Duniway, Circuit Judge:
Appellant was a fisherman employed aboard the ap-
pellees’: vessel and was injured while so employed. He
brought this action under the Jones Act (46 U.S.C.
$688) charging negligente. In a. separate count he
sought maintenance and’ cure. The Jones Act count
was tried -to a jury, which returned a verdict for ap-
pellees. ; —
The evidence shows .that the appellees’ boat, whicl:
had returned from a fishing trip, was tied up alongside
a dock in San Pedro. California. unloading its catch.
The fish were frozen hard. “Appellant and ‘a fellow
crew niember, one Druskovich, were unloading one of
the brine tanks located in the middle of the vessel.
The tank had an opening 2%’ to 3’ square. It con-
tained fish of varying weights, from. 35 pounds to 150
pounds, the larger fish being on top of the smaller ,
ones. The larger fish were taken out first by means
-of a rope sling attached to a winch. The sling was
placed “around the tail of a fish which was then lifted
from the hatch and placed nearby on the deck. After _
“the larger fish had been removed appellant entered the
tank to unload the smaller fish by means of a bucket
‘which was 2’ to 214’ square. It was lowered ‘into the
_tank, filled by appellant, and hoisted out by a winch.
_, At the time of the injury appellant had filled the
bucket and was waiting for the winch te lift it out.
_His head’ was in the hatch opening, either at, or just
above, or just below the level of the deck.- Druskovich,
who was on the deck, lifted a tuna that had previously
_ been hoisted out of the tank;-and weighed some 130
to 140 pounds, for the purpose of putting it in the
bucket on the deck. He ‘did this by grasping the tail
* with his left hand, then hooking a longshoreman’s hook
which he carried in his right hand, into the eye of the
fish. While the fish was. being lifted, the hook came
out of the eye and the fish slipped from. Druskovich’s
grasp. It hit the deck, slid into the hatch and struck
appellant on the head, shoulders and arm, knocking him
down. .
Appellant emer testimony of Druskov ich, who ac-
tually handled the fish, and that of another experienced
fisherman. The testimony. would: support. a, finding
that. the fish- was handled in the customary manner,
but that even when handled in’such manner, a fish may
be dropped once or twice a day. “The accident -could
- have happened because the eye of the fish. was soft so
that the hook ‘could pull out or because the bone of the -
fish surrounding the eve broke, or because ‘the hook
. broke. There was no evidence as to which. if any, of
‘these events. occurred, © There was, however... evidence
_ that the propery way to place the hook in the eve of al
tuna, in order to prevent it from slipping out, is to in-
sert it. under the bone in the eye. It was not proved,
however, that Druskovich had done this with the fish
that injured appellant; Sometimes with a big fish, and
for safety purposes, appellees use ‘a sling instead of
the hook. Druskovich knew that it was possible that a
fish could fall off the hook. He testified that he did
nothing in particular to prevent this fish from doing
SO. | |
‘Appellant assigns four errors. The first is the -re-
fusal of his proposed instruction on res ipsa loquitur.
/The second is the giving of an instruction: that the
mere happening of the accident does not ordinarily per-
mit the jury to draw an inference of negligenée. The
third is the giving of instruction Gn contributory’ neg-
ligence, with the proper qualification for a proportion-
ate reduction in damages. “The fourth: is the denial
ae
of interest on the award that was made under the sep-
arate count for maintenance and cure.
1. * The proposed instruction on res ipsa loquttur”
- was properly refused. a
The instruction proposed reads as follows: _ |
“From the happening of the accident involved.
in this case, an inference arises that a proximate
cause of the occurrence was some negligent con-
duct on the part of the defendant. ‘That inference
‘is a form of evidence and unless there is contrary
evidence sufficient te meet or balance it, the jury
should find in accordance with the inference. -
“When' there is any evidence to the contrary.’ :
you must weigh all of the evidence bearing upon
the issue of derendant's negligence. Ti the evidence
tending to prove that the accident was caused by a -
failure of the defendant to exercise the care re-
quired of him has greater weight than the evidence ©
to the contrary,.you will find in favor of the plain-
tiff on that issue. ~
“In order to meet or balance the inference of
negligence, the defendant must present. evidence to
show either (1) a satisfactory explanation of the
accident, that is, a definite cause for the accident,
in which there is no negligence on the part of the
defendant, or (2) such care on the defendant's
part as leads to the conclusion that the accident
did not happen because of want of care by him,
but was due to some other causé, although the
exact catise may be unknown. If such evidence has -
at. least as much convincing force. as the inference .
and other evidence, if any, supporting the inference,
‘then you will find against the plaintiff on that is-
sue.
This being an action based upon an act of Congress,
‘we are bound by Federal Law. as announced by the
Supreme Court. (Cf. Garrett v. Moore-McC ormack
Co., 1942, 317 U.S. 239)
In Sweeney v. Erving, 1913. 228 U:S. 233, which in-’
volved an. injury to the. plaintiff by Xéray burns, the
trial court was asked to instruct the jury, in substance,
_ that the cccurrence of the accident was itself “evidence
of negligence and cast upon the defendant the burden
of proving, by a preponderance of the evidence, that .the
injury was not caused by his negligence.. The court
held that this instruction was properly refused. saying:
“In the view we take of the matter, it is not
; necessary to pass upon the question whether the
———
‘ evidence presented a case for,the application of the. .
rule res ipsa loquitur: ‘tor the reason that in cases
where that. rule does apply, it has not the efféct
of _— the Burden ot proof.” (p. 238)
“In our Bonin res ipsa loquitur means that
the facts of the occurrence- warrant the inference
ot negligence, not that they ‘compel, such an in-
ference; that they ‘furnish circumstantial evidence -
of negligence where direct evidence of it may be
lacking, but it is evidence to be weighed, not neces-
sarily to be accepted as sufficient: that ‘they call
for explanation or rebuttal, not necessarily that
they require it: that they.make a case to be de-
cided by the jury, not that they forestall the ver-
dict. Res ipsa loquitur; where it applies, does not
convert the defendant's general issue into an af-
firmative defense. When all the evidence is in,
the question for the jury is, whether the prepon-
derance is with the plaintiff.” (p. 240)
This decision was citéd with ‘approval in Jesionowski
. Boston & Maine R.R.. 1947, 329 US 452, 457.-—
‘ that case the Court described the pao decision
as one “which cut through the mass of verbiage’ built
up around the doctrine’ of res ipsa loquitur.” It then
quoted with approval the language that we have quoted
above. The Sweeney case was also cited with approval
in Toimson 7. United States, 1948, 333 U.S.-46.
While we have considerable doubt about it, because
here direct evidence was not lacking. we assume, as the
Court did in Sweeney, but du not decide, that this is a,
cae
.
case in which the court should have given-an instruc-
tion on the doctrine of res ipsa loquitur. We hold,
however, that the instruction proposed is subject to the
“same criticism as the instruction in the ‘Sweeney case.
The first paragraph of the instruction grects the jury
to find in accordance with the inference “unless there is
contrary evidence sufficient to meet or balance it.” The
second paragraph of the instruction tells the jury to
_ weigh the inference where there is evidence to the con-
- trary, thus implying. as the first paragraph flatly states, .
that the jury must accept the inference, rather than
may accept it, in the absence of such contrary evidence.
.- Yet in Sweeney the Court said that the doctrine means
that “the facts of the occurrence warrant the inference
of negligence. not that they compel such an inference.”
(Emphasis added) The third paragraph of the instruc-
tion requires the defendant, in order to meet or balance
the inference, to present evidence to show either a defi-
nite cause for the accident, not involving negligence, or
due care, showing that the accident was not caused by
negligence. * Yet in Sweeney the Court pointed out that
where the di ctrine is applicable it means only. that the
fe facts “call for an explanation or rebuttal. not neces-
sarily that they require it; that they make a case to’ be
decided by the jury, not that they ‘forestall the verdict.
Res ipsa loquitur, where it applies. does not convert the
defendant's general issue into an affirmative defénse.””
In ether words. in drawing thei proposed instruc-
tion, dOunsel for appellarits fell into a common error.
Thev asked the court to instruct upon a subject as to
which we'assume they were entitled to an instruction,
but they framed an instruction “which. stated the doc-
trine in a manner more favorable to them than the law
oy : . _
ae
?
permits. The court wasNander no duty to redraw their
instruction for them.’ It properly rejected it.
2. It was not prejudicial errer to give the “mere fact ~
_ that an accident happened” instruction: ©
The instruction given reads :
“The mere facr that an accident happeried, con-
sidered alone. does not as a fule permit. the jury
to draw the inference that the accident was caused
by someone's negligence.”
This instruction merely states. in general terms, the
ordinary rule in accident’ cases. It is as applicable: to
appellees’ claim that appellant was negligent .as it is to
appellantys claim that appellees were negligent. It’ is
limited by the phrase “as a rule.” The court did leave
to the jury, under instructions that are not criticized.
the right to decide whether appellees were negligent.
The criticized instruction is not inconsistent with ther.
It does not tell the jurv that they cannot consider all
of the circumstances shown by the evidence in deciding
the issue of negligence vel non. Presumably. the jury -
did consider them. ~ |
But appellant says that this is a res ipsa loquitur
case, that the inspruction sis clearly -contrary to that
doctrine. and that therefore it was error to give it.
Mong v. Swier, 9 Cir.. 1959, 267, F. 2d 749, 761: Omaha
Packing Co. v: Pittshurg, Fe IPe& ©. Rv Ce. 7 Cir. 1941, 120
F.2d 594 (a res ipsa instruction cased ol lmcarde Capital Trons-
it Co.. D.C. Cir, 1947, 1603 F 2d ONO Southern Ry. Co. e.
Jones, 6 Cir., YORE, 222° F, 2 298: Chern a Stedman. & Cir.
1938, 289 F.2d 744. The rule is an old one, and we are entitled
teexpect counsel to be awere of ttoand ote frame orocer instrie-
tions instead ef framing imoeroper ones tharwilh tf accented, lead
the court into error, (Catis 7. Phelan, W44, 428 S262 How.)
375.) The Stceney case itself in tect appties it, bet without sav
ing so. |
—s—
_ This is not necessarily so; as an introduction to a proper
res ipsa instruction, the criticized instruction would have
been proper and would have protected appellant ag rainst
_ any jinference, arising from the accident, that he was
Fone We find here no prejudice in giving the
‘instruction.
3. Jt was not prejudicial error to give the instruction
on contributory negligence.
_ The instruction is as follows:
“Tf -you should find that the defendant was guil-
ty of negiigence which proximately caused injury
‘to the plaintiff, “and further find that the plain- - :
tiff was guilty of some negligence which proxi-.
mately contributed to his injury,.then the total dam-
ages awarded * the plaintif f must be diminished or
reduced by you in the proportion that the amount
of contributory negligence chargeable to the plain-
_ tiff compares to the amount of negligence charge- -
able to the defendant.”
Appellant asserts that the evidence would not sup-
port any finding that he was contributorily negligent
and that therefore the giving of. the instruction was
error. But assuming that appellant is correct in his
view that a finding of contributory negligence would not
be supported, the instruction was. not prejudicial here.
In these cases, the rule of comparative negligence,
stated in the instruction. applies... It is never a com-
plete defense: and the court did not tell the jury that it
is” Here the verdict was in favor of the appellees.
This can only mean that the jury found that they were
not negligent. Under these circumstances, contribu-
‘ 4
tory negligence, if ‘any, becomes immaterial.. It fol-
lows that the instruction could not have been preju-
dicial.. a
ee 4+. There was no error in refusing
¢ to award interest.
Absent <6me peculiar facts. an award for mainte-
nance and cure carries interest. (Medina v. Erickson,
9 Cir.. 1955, 226 F. 2d 475. 484) At the conclusion
of the trial. counsel stipulated to the amount,-at a daily
rate. for certain days. Appellant's counsel then asserted
that he wished to have interest awarded on a weekly
- basis on the amount agreed upon. Appellees’ counsel
objected. stating: “I object to that. I stipulated to
this in the-interest of speeding this matter up. 1 think
we might very well have two contentions, one as to
whether or not. despite the Public Health fit for duty.
he might have gone back to fishing before March 1961
and whether or not some of this period was a résult of
diabetes.” The court declined ‘to award interest. When
the stipulation was made, counsel: for appellant did not
mention interest: he first stated his claim immediately
afterward. At that point appellees’ counsel objected.
as shown above. Yet appellant's counsel did siot sug-
gest that the stipulation be reopened. He wants to
have his.cake and eat it too. It appears that the stip-
ulation was a compromise and we think that this con-
stituted sufficient “peculiar facts” to justify the denial
of interest under the circumstances, Appellant waived
findings on this issue. and hence canfiot claim: that there
is error because no “peculiar facts” were found. (Cf.
The Madison, Cir: 1937, 91 F. 2d 835, 847)
Affirmed.
=
APPENDIX B.
Judgment.
United States Court of Appeals, for the Ninth Cir-
“cuit.
Frank Ursich, Appellant, vs. Manuel D. Da Rosa,
_ etal., Appellees. No. 18409.
~ Appeal from the United States District: Count for
the Southern District of California, Central Division.
This Cause .came on to be heard on the Transcript
of the Record from the United States District Court
for the Southern District of. California, Central Divi-
sion, and was duly submitted.
On Consideration Whereof, It is now ‘here ordered
‘and adjudged by this Court, that the judgment of the
said District Court i in this Cause be, and hereby is af-
firmed.
Le aes
APPENDIX C.
Order Denying Petition for Rehearing.
_ + United States Court of Appeals for the N inth Circuit.
Excerpt from Procedings cf Tuesday, April 7, 1964.
Before: Hamlin, Browning & Duniway, Circuit
- Judges. ate 7 |
On consideration thereof; and by direction of the
Court, It Is Ordered that the petition of appellant
filed March 26, 1964, and within time allowed there-
- for by rule of court, for 4 rehearing of above cause
be, and hereby is denied.
—lZ— -
APPENDIX D.
“Any seaman who shall suffer personal injury
in the course of his employment may, at his elec-
tion, maintain an action for damages at law, with
the right of trial by jury, and in such action all
statutes of the United States modifying or extend-
ing the. common- law right or remedy in cases of
personal injury to railway employees shall apply;
and in case of the death of any seaman as a re-
sult of any such ‘personal injury the .personal rep- ’
resentative ‘of such seaman may maintain an ac-
tion for damages at law with the right of trial
_ by jury, and in such action all statutes of the
United States conferring or regulating the right of
action for death in the case of railway employees —
shall be applicable. Jurisdiction in such actions
shall be under the court of the district in which
the defendant employer resides or in which his -
principal office is located.”
{United States Code, Title 46, Sec. 688. |
LO BGR TRIN CR Be FN tm
PEW Rte eae ame ane Re wee
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